STATEMENT OF THE AMERICAN LEGION

Hon. EDMUND S. MUSKIE,

THE AMERICAN LEGION, Washington, D.C., July 1, 1971.

Chairman, Subcommittee on Air and Water Pollution, Senate Committee on Public Works, New Senate Office Building, Washington, D.C.

DEAR SENATOR MUSKIE: The American Legion is vitally interested in the problems of pollution and preservation of the environment. At a recent meeting of our National Executive Committee a Resolution was adopted supporting the appropriation of adequate funds for research into this complex subject. A copy of the resolution is enclosed for your information.

I would appreciate your affording representatives of The American Legion an opportunity to present testimony on this subject if hearings are held by your Subcommittee.

Sincerely yours,

HERALD E. STRINGER,

Enclosure.

Director, National Legislative Commission.

NATIONAL EXECUTIVE COMMITTEE, THE AMERICAN LEGION, MAY 5-6, 1971

Resolution No. :40.

Commission: Internal Affairs.

Subject: Funds for environmental protection research and support for Federal anti-pollution standards.

Whereas, Resolution No. 51, National Executive Committee, October 21-22, 1970, established the policy that "problems of pollution and preservation of the environment are germane to the purposese of The American Legion" and charged the Internal Affairs Commission with "the primary responsibility for coordinating the development of policies, the devising of suitable activities, and providing information to posts;" and

Whereas, the Internal Affairs Commission has considered this complex problem and finds that there are certain measures which The American Legion may properly endorse as a beginning toward the development of a comprehensive effort; Now, therefore, be it

Resolved, by the National Executive Committee of The American Legion in regular meeting assembled in Indianapolis, Indiana, May 5-6, 1971, that

1. The American Legion supports the appropriation of adequate funds public or private for research to determine more precisely the effects of any and all pollutants including pesticides and herbicides; the deevlopment of economical means of control or elimination of harmful pollutants; the discovery and use of means to control insect, rodent, and other pests and to control unwanted vegetation without harm to the environment.

2. Posts of The American Legion are urged to become informed in local problems of solid waste pollution, and to lend their support to adequate local measures, especially for the improvement of municipal sewage disposal systems.

3. The American Legion offers its full support to local campaigns to clean up our physical environment and will cooperate with other civic organizations and agencies in similar or related projects.

4. The American Legion commends the President of the United States for establishing the Environmental Protection Agency and expresses its deep interest in the work of that agency.

5. To the extent that scientific knowledge justifies, The American Legion supports the establishment and enforcement of Federal anti-pollution standards so that like industries wherever located in the United States will be required to meet like standards so that a profit advantage or disadvantage will not be created by a variation in standards or in enforcement among the fifty states.

6. Departments of The American Legion are requested to designate a commission, committee or other body to develop department policies and programs in this field compatible with National policies.

STATEMENT OF AMERICAN MINING CONGRESS

By DAVID SWAN, Vice President-Technology, Kennecott Copper Corporation

Mr. Chairman and members of the committee, I am pleased to submit this statement on behalf of the American Mining Congress, an association of U.S. companies that produce most of the nation's metals, coal and industrial and agricultural minerals. Its membership includes also more than 200 manufacturers of mining and mineral processing equipment and supplies as well as financial institutions with a business interest in the mining industry.

Before beginning my specific remarks on the proposed legislation amending the Federal Water Pollution Control Act, it might be well to point out that the member companies of the American Mining Congress have long been concerned with the quality of the environment in the areas in which they operate. The environmental effects of proposed operations are carefully considered in the planning and engineering of every mining and processing facility developed. Both through their own resources and those of manufacturing suppliers, AMC members have been active in the development of measures to protect environmental quality, including water quality, and of the technology needed to do so. It is especially noteworthy that, although the output of the mining industry has increased substantially in recent years, the fresh water intake has increased only slightly. The reason for this is that the industry has learned how to make wash water suitable for recirculation. It has been estimated that the coal mining industry generally reuses each gallon of water 15 times prior to discharge. Thus, it is from a background of long experience and technical familiarity with the water quality problems of the mining and mineral processing industry that the following comments are offered.

Our remarks below are directed at the Administration's bills-S.1012, S.1013, S.1014-and the bill introduced by Senator Muskie and others, S.523.

GENERAL OBSERVATIONS

Under the present Federal Water Pollution Control Act, Congress recognizes the primary responsibilities and rights of the states in preventing and controlling water pollution. However, both S.1014 and S.523 would provide for direct federal responsibility and control in the field of water pollution at the expense of the states. Since approval of the first federal water pollution control act, an attempt has been made to maintain a delicate balance between the activities of the federal government and those of the state government in this field. The present proposed legislation is a drastic departure from previous policy.

Progress is being made today on the state and regional levels in controlling water pollution. It has not been demonstrated that giving the federal government additional authority is going to speed up the substantial progress being made.

Rather than giving the federal government additional enforcement authority, we believe it is more desirable to increase the authorization for sewage treatment works, increase the authorization for state and interstate programs and simplify and streamline the present operation of the Water Quality Act. In line with this basic position on proposed water pollution amendments, the American Mining Congress has the following specific comments to offer on the proposed legislation.

I. Increased authorizations for sewage treatment works and for state and interstate water pollution control program

Under the provisions of S. 1013 an appropriation of $6 billion would be authorized: $2 billion for each of the next three fiscal years to match on a 50-50 basis state and local funds, for the construction of a total of $12 billion of waste treatment works throughout the country. We endorse this proposal.

The American Mining Congress likewise endorses the proposal of the Administration in S. 1012 to increase the authorization for state and interstate programs over a period of four years on a sliding scale from $15 million in fiscal year 1972 to $30 million in fiscal year 1975. The American Mining Congress recognizes that there has been a substantial increase in the effectiveness of state water pollution control programs. However, it is also true that most state programs need additional personnel and equipment to determine adequately the problem of water pollution. The gradual increase in the amounts for state and interstate control programs should provide for orderly progress.

II. Water quality criteria

Both S. 1014 and S. 523 provide for the issuance of water quality criteria by the EPA Administrator. However, S. 1014 also requires the inclusion of analytical and test procedures; and in section 10(d) (6) that the proposed criteria be published in the Federal Register with interested parties being allowed 45 to 60 days to submit written comments prior to final promulgation. These are desirable features and we urge that if the subcommittee decides to include provisions on the issuance of water quality criteria, the provision in S. 1014 be followed.

III. Effluent requirements or limitations

S. 1014, in section 10 (d) (4). would direct the EPA Administrator to establish "specifications for effluent limitations," while S. 523 provides that state implementation plans include "effluent requirements." We believe the approach of S. 523 is preferable.

We are strongly of the opinion that federal effluent limitations are not desirable and that such regulations should be left to regional, state or local agencies which are in a position to give recognition to local conditions. The problem we see with national effluent regulations is that such standards will be too strict for some areas, resulting in large unnecessary costs and resultant economic dislocations.

IV. Provision for the use of "latest available pollution control techniques”

S. 523, in section 10(e) (1), provides that the EPA Administrator must issue regulations requiring that those constructing new facilities install the "latest available pollution control techniques."

In the first place, the meaning of this phrase is unclear. The phrase should definitely be defined. Otherwise, when does a control technique become available and how can one be sure that it is the "latest"? Also, this section does not consider the economic or technical feasibility of the technique or the desirability of applying the latest available pollution control technique when previously existing alternatives might serve just as well.

Furthermore, we question whether a requirement of this sort is really prac tical. If all new construction must include the latest available control technology, tremendous pressure will be placed on the limited resources of the country. There are only so many trained individuals and firms in a position to supply the latest available pollution control techniques.

We strongly urge that before any provision of this sort is written into proposed amendments to the Federal Water Pollution Control Act, a careful review be made of the exact meaning of the phrase and how the provision is to be administered.

V. Closed-cycle system

Section 10 (e) (2) of S. 523 provides that: "Whenever the Administrator finds. and publishes such finding, that closed-cycle production or treatment systems are available or can be made available, any effluent requirement applicable to a new building, structure, or facility shall provide for no discharge, except as may be required to operate such closed-cycle system."

This requirement could have the effect of imposing a zero effluent limitation on production or treatment systems since the term "closed cycle” literally means "complete retention." Analytical methods are being constantly improved so that minute amounts are being found where it was thought previously that pollutants were not present. Thus, it should be emphasized that in reality zero discharge means complete prohibition.

Furthermore, the "closed-cycle" requirement suffers from the same deficiency mentioned above concerning the requirement for the use of the latest available control technology” in that neither term is defined. It is not clear when the "closed-cycle" technique becomes available. Also, the "closed-cycle" technique

would be required even though the water pollution problem of a facility was insignificant. We strongly urge that this provision be deleted from any legislation approved by the subcommittee.

VI. Nondegradation Provisions

Both S. 523 and S. 1014 adopt a policy of nondegradation of the present quality of the waters to be covered by the proposed act. We believe a provision for nondegradation is quite impractical and will result in new industry being forced to locate where there is already a heavy load of waste discharges.

It is virtually impossible to engage in any industrial activity without, in some way, degrading the water. On the one hand-government policy encourages decentralization and-on the other hand-the nondegradation provision means a greater concentration of industry in already polluted areas. Apparently, the rationale of this policy is that as one waste source is cleaned up, another will be permitted to pollute in the same general area-thus resulting in no overall degradation.

It would rather be our suggestion that sources be permitted to locate on high quality waters with the provision that water quality standards be observed and enforced. Otherwise, the policy of nondegradation will lead to under-development of certain areas and increased pressure on the already heavily developed areas of the country.

VII. Permit Requirements

Under section 10(e) (1) of S. 523 there is a requirement that no person shall construct or install any building, structure or facility for commercial purposes without receiving a certification of compliance with regulations of the EPA Administrator and the State pollution control agency concerned. Today in the vast majority of the states-a company must submit plans and specifications and secure a permit from the state control agency prior to construction of any new facility which would discharge waste water.

Futhermore, under regulations just promulgated by the Corps of Engineers, a permit must be secured under the Refuse Act of 1899. Thus, we fail to see any reason why section 10(e) (1) is needed.

Rather, we would suggest that the matter be left entirely to the states and not be duplicated on the Federal level.

VIII. Citizen suits

S. 523, in proposed section 111(1), would provide that any person may commence a civil action on his own behalf against any person alleged to be in violation of the act or against the EPA Administrator where there is alleged a failure of the Administrator to perform any act or duty under the act. We seriously question the addition of this provision to the Federal Water Pollution Control Act. Presumably, the EPA Administrator will administer the act impartially and with uniform application and interpretation without the necessity for interference by the courts. The major drawbacks we see to this propsal are: (1) a burdening of an already overcrowded court system with highly technical litigation and (2) a resultant harassment of certain industries or companies. Therefore, we strongly urge that this provision not be included in the proposed legislation.

I greatly appreciate the opportunity of submitting these comments on behalf of the American Mining Congress on proposed amendments to the Federal Water Pollution Control Act.

Members of the staff of the American Mining Congress would be pleased to discuss the points raised in this statement with members of the staff of the Subcommittee on Air and Water Pollution.

STATEMENT OF THE AMERICAN WATERWAYS OPERATORS, INC.

By MARKHAM BALL, Counsel

CONTROL OF WATER POLLUTION FROM VESSELS

The American Waterways Operators, Inc. (AWO) is the national association representing the domestic water carrier industry, principally the owners and operators of towboats, tugboats and barges on the inland and coastal waters and in the harbors of the United States. AWO welcomes the opportunity presented by the Subcommittee's review of federal water quality programs to bring to the attention of the Subcommittee some pressing problems relating to the control of water pollution from vessels.

Regulation of vessels that continually cross state lines is obviously a national question that demands a national solution. This is at least implicit in the 1970 amendments to the Federal Water Pollution Control Act, which, among other things, directed the establishment of comprehensive federal programs to control oil pollution and sewage discharges from vessels.

AWO's members are now finding, however, that a rapidly increasing mass of state laws, together with some overlaps among the federal laws regulating discharges from vessels, are subjecting vessel owners and operators to the kind of patchwork regulation that a federal system is supposed to avoid. This statement discusses three areas where overlapping and conflicting laws are causing present or imminent problems. The problems:

1. There are technical deficiencies in the provisions of federal law providing for federal preemption of the regulation of sewage discharges from vessels. These deficiencies could subject vessels to conflicting state laws for an unnecessarily long time and could make the transition from state to federal regulation unduly difficult.

2. Many states have recently enacted laws dealing specifically with the discharge of oil from vessels. These laws are undercutting, and could eventually destroy, the system of federal regulation of oil from vessels established in the 1970 Act.

3. There is a need for further coordination and unification in the administration by the Federal Government of the various federal laws relating to pollution from vessels. Vessel owners should not, for instance, be subjected to cumulative liabilities under the Water Pollution Control Act and the Refuse Act.

These problems require urgent consideration. They are severe, and they promise to become worse unless corrective action is taken. Already-as we discuss more fully below-these problems threaten to restrict seriously the ability of some vessel owners and operators to engage in commerce in certain states.

I. SEWAGE DISCHARGES: TRANSITION TO FEDERAL REGULATION

Section 13(b)(1) of the Federal Water Pollution Control Act, as added by the Water Quality Improvement Act of 1970, requires the Federal Government to promulgate standards and regulations governing the performance and use of marine sanitation devices. Section 13 (c) (1) provides that the standards and regulations are to be effective for new vessels two years after promulgation, and for then-existing vessels five years after promulgation. Section 13 (f) provides that, after the effective date of the standards and regulations, no state shall enforce its laws regulating marine sanitation devices with respect to any vessel subject to the federal requirements.

Obviously, it would be unreasonable to require vessels that go from state to state to maintain two or more different sanitation systems to meet differing state requirements. Congress provided for federal preemption to avoid both "potentially serious restrictions on interstate movement of commercial vessels" and "hardship to recreational boaters who move between States." S. Rep. No. 351, 91st Cong., 1st Sess. 12 (1969).